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Government of Zimbabwe undermining the rule of law, violating treaty
- SADC Tribunal
Rights NGO Forum
January 12, 2011
Human Rights NGO Forum (the Forum) welcomes the judgment handed
down by the Southern African Development Community (SADC) Tribunal
on 9 December 2010 in the case of Gondo
and 8 others vs the Government of Zimbabwe Case No. SADC (T)
05/2008. The SADC Tribunal ruled that the Government of Zimbabwe
violated Articles 4 (c) and 6 (1) of the SADC Treaty by failing
to pay compensation to the nine (9) Applicants who are all victims
of organized violence and torture (OVT).
The Forum brought
the case before the Tribunal in 2008 on behalf of nine (9) victims
of OVT. All the victims were represented by the Forum and successfully
claimed compensation in the High Court of Zimbabwe but the government
of Zimbabwe refused and/or neglected to pay compensation. In the
SADC Tribunal case the Forum contended that by failing to comply
with the orders of the High Court, the Government of Zimbabwe was
in breach of its obligations under the SADC Treaty and in particular
Articles 4 (c) and 6(1) of the Treaty. The Forum further argued
that Section 5(2) of the State Liabilities Act was in breach of
the Treaty in so far as it precludes government property from forming
part of the subject matter for execution, attachment or process
to satisfy a judgment debt.
of Zimbabwe had initially raised technical objections to the Application
citing procedural irregularities. The matter went for initial hearing
on 22 April 2009 and the Tribunal disposed of the procedural issues
raised by the Government of Zimbabwe allowing the Forum to amend
the Application before the hearing on the merits.
heard the Forum's arguments on the merits on June 1st, 2010.
The Government of Zimbabwe did not respond to the application on
its merits and in December 2010, the Tribunal handed down its judgment.
The Tribunal ruled as follows;
- That the
Government of Zimbabwe is in breach of Articles 4 (c) and 6 (1)
of the Treaty in that it has acted in contravention of various
fundamental human rights, namely the right to an effective remedy,
the right to have access to an independent and impartial court
or tribunal and the right to a fair hearing; and
- That Section
5 (2) of the State Liabilities Act is not only in contravention
of the Treaty but also violates Article 3 (2) of the African Charter
on Human and Peoples' Rights which provides that "Every
individual is entitled to equal protection at law".
The Forum applauds
the Tribunal for handing down a progressive decision which acknowledges
the need for an urgent reform of repressive pieces of legislation.
The decision is significant as it provokes debate on the implications
of Section 5(2) of the State Liabilities Act on fundamental human
rights such as the right to equality before the law and the rights
to an effective remedy. It highlights the need to assess and reform
various other pieces of legislation, apart from the overtly anti-democratic
and repressive ones like POSA
to ensure full protection of human rights.
The ruling also
confirms what the Forum and other Zimbabwean civil society orgnisations
have been saying over the years - that one of the country's
main challenges is the flagrant disregard of court orders by the
state and the absence of the rule of law. The Forum implores Government
to respect the rule of law and to honor its obligations under international
law in order to ensure the protection of its citizens' right
to an effective remedy and equality before the law.
further ordered an adjustment of the awards made to the victims
by the High Court and that this shall be done under the supervision
of the Tribunal's Registrar. An award of costs was also made
against the Government in favour of the Forum. This is a development
worth noting as this award is made only in exceptional circumstances.
This decision acknowledges the Forum's contention that the
Government of Zimbabwe persistently flouts orders granted by its
own High Court. It was therefore in the interest of justice that
a Government that relentlessly denies victims compensation to which
they are entitled be so ordered to compensate and meet costs. The
punitive aspect of the decision is very progressive and most welcome.
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Human Rights NGO Forum fact
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